Monday 13 October 2014

What are the Charity Commission up to now?

Had anyone noticed – before last week – that the Charity Commission this year produced a new ‎‘Statement of Regulatory Practice’?‎ Certainly it hadn’t been much discussed. It appeared in its 2013-14 Annual Report, published in July, and was mentioned by Paula Sussex in a speech last Tuesday. Stephen Cook’s excellent editorial in Third Sector on Friday was timely in drawing attention to it and the surrounding debate. At ACEVO we’ve been investigating the new statement for a few weeks; it is important and concerning.

The new Statement of Regulatory Practice has added an interesting regulatory area that seems not to have appeared before in this form; the regulation of ‘‎improper politicisation’. No mention is made of this point in previous reports.

The full statement reads:

‘We will be alert in particular to fraud, terrorist activities, the abuse of vulnerable beneficiaries and to improper politicisation.’

The closest equivalent line in the previous Annual Report instead focuses on:

‘Issues of fraud, financial abuse, terrorism and concerns about the safeguarding of vulnerable beneficiaries are among the most serious of abuses and we will continue to concentrate on tackling these problems.’

No word on ‘politicisation’ there.

Of course charities need to avoid being partisan and party political. The Commission has the job, as regulator, to enforce the law on this matter. But how exactly will the Commission – whose role is explicitly non-political and in fact quasi-judicial – properly determine what is ‘politicisation’ let alone when it might be deemed ‘improper’? The Commission’s own guidance document CC9 states specifically that ‘campaigning and political activity can be legitimate and valuable activities for charities to undertake’. Indeed if you invert the phrase this would mean that ‘proper’ politicisation is fine. What does all this mean in practice? And who is to judge?

This might all be discarded as merely a clarification of existing practice as set out in CC9 (in its latest post-2008 version). But given the tone the Commission has set over the past year or so charities might be right to wonder whether the definition of what political work is deemed ‘proper’ might vary according to political whim. Either the Commission is subject to political influence and so it shouldn’t be allowed to make judgments like this, or it is indeed a quasi-judicial body and thus the independence of its regulatory activity should be closely guarded.

Further down in the Statement of Regulatory Practice comes an assurance that ‘we will respect and protect charities’ independence’. How do these two statements add together?

I’m concerned that in the current debate around charities’ duty to speak out and to campaign, the focus on preventing ‘politicisation’ might curb our right to independent voice as long established in law – and as is laid out in CC9. In the recent debate about the Oxfam ‘perfect storm’ advert it would have been good to see the Commission more clearly defending our right of free speech from the outset. I’m sure they will be clear in their views that the advert fell well within their Guidance and will protect our independence from political attack. 

At worst this addition to the regulatory list may signal the Commission is prey to ideological winds, as exemplified by the recent choice of Frank Prochaska to speak at their Annual Public Meeting, comments from its Chairman or the failure of the Commission to argue for charity exemption from the Lobbying Act. If, as Stephen Cook suggests, a wider review of CC9 and charity campaigning guidance will soon be afoot, if not before the election then later in 2015 or 2016, it would be worrying to begin the review with the Commission already having set out a clear, hostile view that says charity campaigning and political activity should be curtailed.

We saw in our Red, Blue and Yellow Books of the Voluntary Sector that the big political parties are all thinking seriously about charities, the regulator and civil society’s relationship with politics. Let’s hope that the run-up to the General Election gives us a serious debate on this issue, and that MPs take their seats next May better informed about charity political activity and ready to carefully defend us against any efforts to curb our campaigning. Our independent speech must be protected!

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